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I Now Pronounce You Never Married

Over the last few months, Montgomery County’s register of wills, D. Bruce Hanes, has made quite a name for himself in the local and national media by issuing marriage licenses to same-sex couples because he personally believes that Pennsylvania’s definition of marriage as between one man and one woman, which is still the law in most of the United States, is “arbitrary and suspect.” Hanes’ actions do not take into account what these licenses will mean for any divorces that result from the same-sex marriage licenses he has issued.

Many will presume that these same-sex divorces will simply proceed like any other divorce would; however, there may be an alternate means to achieve the dissolution of these “marriages,” especially if you are, or represent, the person with the greatest amount of assets and/or income. First of all, as Pennsylvania law does not recognize same-sex marriage, courts have, thus far, been unwilling to grant same-sex divorces because to do so would be to tacitly recognize the underlying marriage. So, what does one do with this Montgomery County marriage license, especially if one, or both, of the parties in a same-sex marriage moves to a jurisdiction that does recognize their marriage?

No matter how one feels personally, emotionally, legally or any other way on the subject of same-sex marriage, the undeniable fact is that, as it stands now, Pennsylvania law defines marriage as “a civil contract by which one man and one woman take each other for husband and wife.” Therefore, by the clear operation of the plain and black-letter law, two people of the same sex may not enter a relationship defined as marriage under Pennsylvania law, regardless of what Hanes does or thinks. So, the obvious legal question is this: Can a court legally divorce what is not legally a marriage?

The matter of the same-sex marriages described above is not the first time the courts have had to entertain the basic question of whether a marriage was legal to start with, let alone subject to divorce. In 2007, the York County Court of Common Pleas heard the matter of Heyer v. Hollerbush, Pennsylvania No.: 2007-SU-2132-Y08 (September 7, 2007). In Heyer, the couple at issue (a man and a woman) was married with a Universal Life Church minister as the officiant. Under longstanding Pennsylvania law, only “the following are authorized to solemnize marriage between persons that produce a marriage license issued in this part: A minister, priest or rabbi of any regularly established church or congregation.” Armed with this statute, the plaintiff in Heyer, instead of filing for divorce, rather shrewdly and astutely, filed a motion for declaratory judgment instead, arguing that the couple had never actually been married because their Universal Life Church officiant had no authority to solemnize their marriage. The Heyer court agreed and ruled that since, in its estimation, a Universal Life Church minister does not fit the criterion laid out under 23 Pa.C.S.A. §1503(a)(6), the parties were never married. It is worth noting that in 2008, test cases with similar fact patterns as Heyer were filed in Philadelphia, Bucks and Montgomery counties and all resulted in rulings opposite to that of Heyer; however, as none of these matters reached the appellate level, there remains a split among the common pleas courts on this matter.

The impact of Heyer is enormous in the context of divorce, especially if one is, or represents, a defendant. The property held by one party, in the context of a divorce, is considered “marital” and therefore divisible if the parties were married. Furthermore, the dependent spouse may be entitled to spousal support, alimony pendente lite and/or alimony. If the parties were never married, property held in one name only is not divisible if the parties elect to dissolve their relationship and there is no right to any of the above-listed support. The “married” couple in Heyer turned out to be nothing more than a glorified dating, cohabitating or roommate relationship, with only basic contractual rights applying.

How is the Heyer case relevant to same-sex marriage and Hanes taking the law into his own hands? Similar to the parties in Heyer, the same-sex couples, despite the marriage licenses issued to them, are not actually married because of the basic application of Pennsylvania law. Therefore, if and when a party to a same-sex marriage wants to dissolve the relationship, one legal procedural route that is available is to file a motion for declaratory judgment instead of filing for divorce. As stated above, this avenue would be especially attractive to the party holding most of the assets and/or income. As there is already precedent for this tactic’s success, it would not be at all surprising to see it become more common as more same-sex couples are married contrary to the black letter of Pennsylvania law. Indeed, as Pennsylvania law does not recognize same-sex marriage, it does not, by definition, recognize same-sex divorce; therefore, a motion for declaratory judgment may be the only way to secure the striking and/or withdrawal of a same-sex marriage license.

In light of the above, there may be at least two ways to avoid a motion for declaratory judgment. First, if the Pennsylvania Legislature is able to change the historic definition of marriage, it could also, simultaneously, declare Montgomery County’s same-sex marriage licenses (and others like them) to be valid. Second, and more practically, same-sex couples who receive a marriage license such as those distributed by Hanes could simply enter into a nuptial agreement, laying out the terms and conditions of their relationship and their respective rights if their relationship dissolves; such an agreement is enforceable just as any other contract is enforceable. In the meantime, any same-sex couple that gets married using one of Hanes’ marriage licenses should do so with trepidation and with their eyes wide open to acknowledge that their marriage may be anything but a marriage if it does not work out in the future.

Originally published in The Legal Intelligencer Blog on August 26, 2013 and can be seen here and reprinted in the Pennsylvania Family Lawyer, Volume 35, Issue No.: 4, December 2013 edition.